1. The defendants in O. S. No. 2/68 on the file of the Court of the District Judge, Eluru are the appellants in this appeal. The plaintiff's husband and the father of defendants 1 to 3 were brothers were brothers. Their mother was the 4th defendant and the mother of defendants 1 to 3 was the 5th defendant in the lower court. The husband of the plaintiff died on 24-7-1946 as member of the joint family. The joint family possessed the plaint A and B schedule properties and a share in Yadavalli Mokhasa Village. After her husband's death provision for maintenance of the plaintiff was made at the rate of Rs. 540/- per year. A settlement deed was executed on 2-9-1949 creating a change on items 7, 8 , 10 and 14 of the A scheduled properties. Having regard to the rise in the cost of living the plaintiff filed the suit out of which the appeal arises for enhancement of maintenance. She alleged that the income from the A schedule properties was more than Rs. 60,000/- per year. She claimed that she should be awarded maintenance at the rate of Rs. 5,400/- per year. The defendants contested the suit. They raised various defences . The learned Subordinate Judge overruled the several defences , held that the net income of the defendants from the properties was about Rs. 30,000/- to Rupees 40,000/- per year and awarded the plaitiff maintenance at the rate of Rs. 2,000/- per year. The defendants have preferred this appeal , and the plaitiff has filed a memorandum of cross-objections.
2. The first submission of Sri Jagannadha Rao was that the learned District Judge did not discuss the evidence relating to the income from the properties but merely agreed with the argument of the counsel for the plaintiff that the income would be about Rupees 30,000/- to Rs. 40,000/- per year. The learned Subordinate Judge did refer to the evidence though he did not say how he arrived at the figure mentioned by him. One of the criticisms of the learned counsel was that the learned Subordinate Judge did not exclude the properties which had already been sold and therefore, lost to the family. The 1st defendant himself as D.W. 5 stated that he owned 30 acres of mamool wet land and 20 acres of dry land which was cultivated was wet. He also stated that he owned 120 acres of dry land . He stated that the paddy yield would be about 450 to 500 bags per year , that the income from the mango garden was about Rs. 2,500/- per year and the yield from tobacco was about 15 putties per year. The price of one putti of tobacco was given by him as Rs. 500/- . The learned counsel stated that the price of each bag of paddy may be taken as about Rs. 40/- . According to the first defendant he had to spend 300 bags of paddy per year towards wages of farm servants and that it cost him Rs. 1,000/- per acre to grow tobacco. Even on the basis mentioned by the 1st defendant the net income from the properties should be not less than Rs. 18,500/-. Making due allowance for under-estimation of yield and over-estimation of expenses it may safely be held that the income from the lands would not be less than Rs. 25,000/- per year.
3. The second submission of Sri Jagannnadha Rao , learned counsel for the appellants was that the plaintiff herself was possessed of considerable property namely five acres of wet land and 22 acres of garden land. He conceded that under the law as it obtained before the passing of the Hindu Adoptions and Maintenance Act, the income from these lands could not be taken into account in awarding maintenance to the plaintiff. But he submitted that after the passing of the Act the separate income of the claimant had to be taken into account under Section 23(2) and Section 23(3) of the Act. It had been held by this Court in Ramamoorthy v. Seetharamamma, AIR 1961 Andh Pra 131 (FB) that Sections 21 and 22 apply only to estates of Hindu who died after the commencement of the Act. Sri Jagannadha Rao contended that though Sections 21 and 22 did not apply to the estates of Hindus who died before the commencement of the Act. Section 23 applied to all claims for maintenance whether such claims came into existence before or after the commencement of the Act. I do not agree with this submission. Section 23 merely provides for the matters which may be taken into account in determining the maintenance payable under Sections 21 and 22 of the Act. It does not create or confer any right to claim maintenance.
Sri Jagannadha Rao relied on S. 25 of the Act which provides that the amount of maintenance whether fixed by a decree of Court or by agreement , either before or after the commencement of the Act may be altered subsequently if there is a material change in the circumstances justifying such alteration. According to Sri Jagannadha Rao whenever the change is sought after the commencement of the Act, the amount of maintenance must be determined with reference to the provisions of the Act, that is to say with reference to Section 23 . I do not agree with the submission of the learned counsel . Section 25 merely enables altering of the amount of maintenance on proof of change of circumstances. In the case of claims which arise after the commencement of the Act the amount of maintenance has to be determined in accordance with the provisions of the Act. In the case of claims for maintenance which existed even before the commencement of the Act the amount of maintenance has to be determined with reference to the pre-existing law. All that Section 25 has done in the case of pre-existing claims for maintenance is to remove the bar that existed previously. Before the commencement of the Act a widow could bind herself not to claim enhanced maintenance and that would effectively bar her from claiming enhanced maintenance . That bar has now been removed and despite an agreement not to claim enhanced maintenance a widow may so claim under the new Act. That is all. Section 25 does not enable person who had a claim for maintenance even before the commencement of the Act to claim maintenance on the basis of the provisions of Section 23 ; nor does it enable the persons liable to pay maintenance to have the rate of maintenance reduced on that basis. Section 25 does not touch Section 23.
4. The third submission of Sri Jagannadha Rao was that the learned District Judge was in error in taking into account items 1 to 21 of plaint A schedule which were private lands in an estate of which the defendants were proprietors and which had been taken over by the Government. No doubt ryotwari pattas were granted to the defendants under Section 12 of the Abolition Act, but according to Sri Jagannadha Rao , the claims of the plaintiff for maintenance against those items was extinguished as a result of the estate being taken over . The learned counsel relied on the decisions of the Supreme Court in Sheo Ambar Singh v. Allahabad Bank , : 2SCR441 and Shivashankar v. Baikunth Nath, : 3SCR908 . He submitted that the decision of the Madras High Court in Seethalakshmi v. Krishnaswami, (1961) 1 Mad LJ 87 on which the lower court relied must be considered to have been overruled by these two decisions of the Supreme Court.
5. Section 3 (b) of the Estates Abolition Act provides , save as expressly provided otherwise , for the vesting of the entire estate in the Government, free of all encumberances , with effect on and from the notified date. An express provision otherwise is found in Section 3 (d) itself. The proviso to Section 3 (d) of the Act prohibits the Government from dispossessing any person of any land in the estate in respect of which they consider he is prima facie entitled to a ryotwari patta. If such a person is a land-holder he cannot be dispossessed pending the decision of the Settlement Officer and the Tribunal as to whether he is actually entitled to such patta. If such a person is a ryot he cannot be dispossed pending the decision of the Settlement Officer as to whether he is entitled to patta. Section 11 entitles every ryot in an estate to a ryotwari patta in respect of the lands specified in the section. Sections 12, 13 and 14 entitle the land-holder to a ryotwari patta in respect of the lands specified in those provisions. Sections 3 (b) , 3 (d) and 11 to 14 read together indicate that the right of possession of a ryot or a land-holder in respect of which he is entitled to a ryotwari patta is excluded from the estate which becomes in the Government of the notified date. Sections 24 to 37 deal with the determination of compensation payable to a landholder and it is worthy of notice that the income from the lands in respect of which a landholder is entitled to a patta under Section 12 to 14 is not taken into account in determining the compensation. This again appears to indicate that the right of the landholder to the possession of lands in respect of which he is entitled to a ryotwari patta is not included in what is vested in the Government in respect of which compensation is paid to the landholder. Section 42 requires all persons claiming the whole or a portion of the compensation, including persons claiming by way of maintenance and creditors, to apply to the Tribunal within six months from the date on which the amount of compensation is deposited with the Tribunal. The subsequent provisions deal with the procedure to be followed by the Tribunal in dealing with the claims made to it and in apportioning the compensation.
Section 59 provides that no claim or liability enforceable immediately before the notified date against the landholder shall, on and after that date , be enforceable against the interest he had in the estate. It further provides that such claims and liabilities shall be enforceable against the interim payments and compensation paid or payable under the Act and against his other property, if any , to the same extent to which such claims and liabilities were enforceable against such property immediately before the notified date. Thus the debts and liabilities of a landholder are not extinguished by the provisions of the Estate Abolition Act. Where before the notified date a person having a claim against the landholder could have proceeded against the estate , he is , after the notified date entitled to proceed against the interim payments and the compensation. In other respects his right remains unimpaired. That is to say, he can proceed against the other property of the erstwhile landholder in the same manner as he could have done before the notified date. The private lands of a landholder are such other property and the right of a creditor to proceed against private lands of a landholder is unabridged by the provisions of the Estates Abolition Act. This view is supported by the decision of Rajamannar , C. J. and Veeraswami, J. in (1961) Mad LJ 87. Rajammanar, C. J. observed :-
'We do not find any difficulty in deciding the case. Admittedly there was a charge on the pannai or private lands of the landholder for the unpaid purchase price. The argument of Mr Rangachari .............. is that ................... the effect of the notification is to completely destroy the rights inter se between the charge holder and the persons who created the charge. This of course is not quite right because there is a provision entitling a mortgage of an estate to obtain relief by the payment of the amount due to him from and out of the compensation deposited by the Government. This is an indication that it was not the intention of the Act to completely abrogate the rights of mortgagees or chargeholders. Indeed Mr Rangachari concedes that the charge holder in this case also will be entitled to obtain relief so far as the amount of compensation is concerned. But his argument , if we understood him right, is that the pannai lands as such have ceased to exist and though in respect of the same lands ryotwari pattas have been issued to the land holder , they cannot be deemed to be subject to the charge created in this case. We cannot accept this contention. Under Section 12 of the Act in the case of a Zamindari estate , the land holder shall be entitled to a ryotwari patta in respect , among other lands , of what can be established to be private lands within the meaning of Section 3 clause 10 (a) of the Estates Land Act. If in this case ryotwari patta has been issued, it is only because they have been established to be private lands. If instead of issuing ryotwari patta the Government had taken the interest in these private lands and awarded compensation to them , surely it cannot be contended that the charge holder will not entitled to have the amount of compensation. If that be so, we fail to see why the charge holder should be deprived of his security over the same lands which though they have ceased to be private lands continue to be the property of the land holder. Only because the notification these lands were subject to the payment of peshkush along with other lands in the estate, but after issue of pattas they would be subject to the ryotwari assessment. This court took this view in an early case Vide C.M.P. Nos. 8017 of 1950 etc., and 1032 of 1951. We pointed out that the ownership of private lands must be deemed to continue with the Zamindar and there has only been a change of nature of the burden of such lands. It follows that the charge would continue to subsist in respect of the private lands for which under Section 12 a ryotwari patta has been issued to the landholder.'
6. In Md. Mustafa Marakayar v. Md. Aliarmarakayar, (1967) 80 Mad LW 424 at p. 427 Veeraswami and Krishnaswamy Reddy JJ., Arrived at a similar conclusion. Veeraswami, J. observed :-
'Notwithstanding the vesting of the entire estate possession of lands for which ryotwari pattas shall have to be granted is not to be disturbed unlike the rest of the estate notified and taken over. The provisions relating to grant of ryotwari patta show that once the character of the land is determined , patta should perforce issue. In other words, the person in possession of the lands for which he is entitled to a ryotwari patta will get patta not as a matter of grace but as of right which is recognised by these sections. Sub-sections (b) and (d) of Section 3 read with Sections 11 to 14 to our mind make it clear that the vesting of the estate absolutely in the Government on and from the notified date is subject these provisions namely that the persons who shall be entitled to a ryotwari patta will not be disturbed from possession and once the character of the land is determined as ryotwari or those described in any of the Sections 12 to 14, in recognition thereof such person in possession of such lands shall be granted ryotwari patta. In effect both possession and title of a person who is entitled to a ryotwari patta are saved from the effect of the notification under Section 3 (b) and ownership in such lands continue in the quondam land holder not withstanding the notification and the fact that it is subject to determination of the character of the land for which he will be entitled to a ryotwari patta . The only change, however, brought about is not to the ownership but to the tenure of the land for which ryotwari patta is granted. Before notification such land was subject to payment of peshkush and after the notification , its character as private or ryoti land is destroyed and it will be held after the notification and determination of its character and grant of ryotwari patta as ryotwari land subject to payment of assessment as finally settled under Section 22. It was obviously for this reason that even in the computation of the quantum of compensation so payable such private lands were not taken into account and expressly excluded from that context. We do not rely upon this feature to establish continuance of the ownership in the quondam landholder in such land but the exclusion from the computation of compensation of such lands appears to be logical because the ownership in such lands is continued. The continuance of such ownership with the quondam landholder , though under an altered tenure , is quite in keeping with the intention of the Act, which as we have mentioned , was directed to the abolition of the Permanent Settlement , the acquisition of the rights of landholders permanently settled and certain other estate and to bring into being ryotwari settlement in such estates.'
7. After referring to certain decisions of the Supreme Court and distinguishing them Veeraswami, J. referred to Section 59 of the Estates Abolition Act and observed :-
' We have, in an earlier part of this judgment, noticed the terms of S. 59 (1) and (2). The second part of Sub-sec (1) expressly provides that the claims and liabilities of the land holder , after the deposit made pursuant to Sections 54-A be enforceable against the interim payment of compensation and against the land holder's other property, if any, to the same extent to which such claims and liabilities were enforceable against such property immediately before the notified date. Private land for which patta has been granted but on a ryotwari tenure is undoubtedly 'other property' within the meaning of the Section. The word 'other' has been used with reference to the items enumerated in the proceeding clause, namely, interim payments or compensation or other sums paid or payable to the landholder under the Act. The only question is what is the effect to be given to 'such property' in clause (b) of Section 59 (1). We are not persuaded that by 'other property' is meant such property as in its present form should have existed prior to the notified date. There is no reason why the act, having regard to its purpose and intentions should bar the charge holders from proceeding with the properties which do not belong to the State. Clause (b) of Section 59 (1) in our opinion, is comprehensive enough to include the plaint B schedule properties, namely the pannai lands for which the mortgagor was granted ryotwari patta.'
8. The learned counsel for the appellant, however, argued that these two decisions are not good law in view of the decisions of the Supreme Court in AIR 1961 SC 1970 and : 3SCR908 . In : 2SCR441 their Lordships of the Supreme Court were concerned with the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. Under Section 6 (a) of that Act all rights, title and interest of all the intermediaries in every estate including land (cultivable or barren) , grove land etc., shall cease and be vested in the Government free from all encumberances . The provision was drastic and it contained no exception such as that found in the provisio to Section 3 (d) of the Andhra Pradesh Estates Abolition Act. The act did not also contain provisions like Section 12 to 14 of the Andhra Pradesh Act which entitled a landholder to obtain ryotwari patta in respect of certain lands. On the other hand, it was by virtue of deeming provision that the intermediary was allowed to take or retain possession of 'Bhoomidari' lands under the Uttar Pradesh Act. Section 18 of that Act provided that lands held by an intermediary as Sir, Khudkashat, etc., on the date immediately proceeding the date of vesting shall be deemed to be settled by the Government with the intermediary. In other words, first there was a vesting in favour of the Government and next there was a deemed settlement in favour of the intermediary entitling him or retain possession of the lands as 'Bhumidar'. Their Lordships of the Supreme Court, therefore, held that the right of the intermediary in Sir, Khudkashat land was extinguished and a new Bhoomdari right created by Section 18 of that Act. The provisions of the Uttar Pradesh Act were quite unlike the provisions of the Andhra Pradesh Act. Under the Andhra Pradesh Act the provisio to Section 3 (d) preserves the right of the land holder to possession of lands in respect of which he is entitled to a ryotwari patta. Under the Andhra Pradesh Act the landholder is entitled as of right to a ryotwari patta in respect of the lands mentioned in Sections 12 to 14. There is no question of his right to possession of the lands being extinguished and granted afresh. The right to possession remains undisturbed , though no doubt, the tenure is changed in the sense that the lands become subject to the payment of ryotwari assessment instead of peshkush.
9. String reliance was placed by the learned counsel on Shivshankar v. Baikunth Nath, : 3SCR908 . The learned counsel particularly drew my attention to the fact that the Supreme Court overruled the decision of the Patna High Court in Sideshwar Prasad v. Ram Saroop, : AIR1963Pat412 on which reliance had been placed by the Madras High Court while deciding (1967) 80 Mad LW 124. The Supreme Court was concerned with the provisions of the Bihar Land Reforms Act. The consequences of vesting of an estate under Section 4 of the Bihar Act were mentioned by their Lordships and it was expressly pointed out that among the rights which vested in the State was undoubtedly included the right of possession. That should straight away distinguish the provisions of the Bihar Act from the provisions of the Andhra Pradesh Act. I have already referred to the provisio to Section 3 (d) which preserves the right of possession of the ryot and landholder to lands in respect which he is entitled to a ryotwari patta. Again, just as provided by Section 18 of the Uttar Pradesh Act, Section 6 of the Bihar Act also provided for the deemed settlement by the State of lands with the intermediary. Therefore, as under the Uttar Pradesh Act , under the Bihar Act also first there was a vesting in the Government and next there was a deemed settlement by the Government. The position is quite different under the Andhra Pradesh Act as mentioned by me earlier. I am , therefore, of the view that the two decisions of the Supreme Court do not apply to cases arising under the Andhra Pradesh Estates Abolition Act. In the light of the discussions I hold that the plaintiff is entitled to take into account the income from Items 1 to 21 of plaint A schedule also.
10. The next question for consideration is what is the rate at which maintenance should be awarded to the plaintiff. It should be observed here that the suit is not one for maintenance but for enhancement of the maintenance already agreed to be paid to the plaintiff on the ground of change of circumstances. In 1949 the plaintiff was content to receive maintenance at the rate of Rs. 540/- per annum. It is not the case of the plaintiff that any fraud or deception was played on the plaintiff or her mother at the time when maintenance was fixed at Rs. 540/- per annum. The present claim for the award of maintenance at the rate of Rs. 5,400/- per annum is therefore clearly exaggerated. I think the learned District Judge took a reasonable view of all these circumstances in awarding maintenance of Rs. 2,000/- per annum. The appeal and the memorandum of cross-objections are dismissed. There will be no order regarding costs.
11. Appeal dismissed.